"The whole aim of practical politics is to keep the populace alarmed  and hence clamorous to be led to safety  by menacing it with an endless series of hobgoblins, all of them imaginary."  H.L. Mencken

Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

Hamilton said, why have a right to free speech when there's nothing in the Constitution allowing Congress to deny it to you? You already had that right. He argued that a bill of rights would be dangerous, as it could serve as justification for Congress assuming a general regulatory power.

In introducing the bill of rights, Madison made his intention clear:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

No, I mean context as to why he is asking.

Logged

"The whole aim of practical politics is to keep the populace alarmed  and hence clamorous to be led to safety  by menacing it with an endless series of hobgoblins, all of them imaginary."  H.L. Mencken

Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

What's the practical consequence of that valid point you're making, though?

Either you have all these unenumerated rights anyways, and the 9th just spells it out again so that every authoritarian gets the message,or you have them thanks to the 9th and wouldn't have them otherwise. Either way you end up with these rights, right?(Let's leave the question of what rights we might be talking about out of the discussion here...)

Logged

If I'm shown as having been active here recently it's either because I've been using the gallery, because I've been using the search engine looking up something from way back, or because I've been reading the most excellent UK by-elections thread again.

A18 is correct to state that this is a rule of construction. However, he doesn't seem to consider how it can only be applied, because the construction necessarily results in the acknowledgment of certain rights. To begin, the text must be examined carefully. When it is forbidden to read the Constitution in such a way as to abridge extra-Constitutional rights retained by the people, it is only reasonable to perceive these freedoms as being on a Constitutional plane. How else could be they be viewed as pre-empting the interpretation of the supreme law of the land? For that reason, the judiciary must recognize their existence and their central nature. Fortunately or unfortunately, this is the extent of the help that the Constitution provides.

In order to protect these additional rights, we must look outside of the Constitution. This is an open construction, and admittedly a highly subjective one. I regret to say this, but it is an excellent example of legal indeterminacy. Essentially, the only way to decide what rights are protected by this amendment is by justifying their protection within the concept of a system of constitutional liberties.

The focus of the litigation surrounding this amendment is doubtless questions of abortion, homosexual sodomy, etc. Of course, I believe that these things are so basically private, so beyond the reaches of any authority, that their legal protection is assured as fundamental. In light of this, though, I would suggest that it is perfectly legitimate not to view sodomy as constitutionally protected, just as long as no one is given more of a right to it than anyone else. Abortion is complicated by larger equal protection issues, but I imagine if a judge could dispose of those to his satisfaction, he could find it unprotected within some theory of unenumerated rights.

However, we must be aware of some erroneous perceptions. Some liberals find it fitting to view this amendment as reflecting the community's evolving standards of decency. This is dangerous, and far more democratic than our Constitution is or should ever be. Inevitably, the amendment is a perdurable feature of the document, and is perhaps best described as the philosophical battleground of legal rights.

Logged

Economic Left/Right: -10.00Social Left/Right: -10.00

Registered in Massachusetts as a Democrat for Fantasy Elections, though now living in Rome.

Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

What's the practical consequence of that valid point you're making, though?

The Ninth Amendment is not a substantive source of constitutional guarantees or rights. One cannot accurately rely solely on the Ninth Amendment when arguing that one has any particular right. For instance, the argument that "women have the right to have abortions under the Ninth Amendment" is unsound. The Amendment is, as A18 points out, simply a "rule of construction."

Yes, but the ninth amendment does not add any right. It is merely a rule of construction.

What's the practical consequence of that valid point you're making, though?

The Ninth Amendment is not a substantive source of constitutional guarantees or rights. One cannot accurately rely solely on the Ninth Amendment when arguing that has any particular right. For instance, the argument that "women have the right to abortions under the Ninth Amendment" is unsound. The Amendment is, as A18 points out, simply a "rule of construction."

So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them". What have you gained? I'm seriously asking. (Also, notice that I'm not of the opinion that "women have the right to abortion anyways").

Logged

If I'm shown as having been active here recently it's either because I've been using the gallery, because I've been using the search engine looking up something from way back, or because I've been reading the most excellent UK by-elections thread again.

So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them".

Rights do not exist simply because you or I say they do. There must be some reason, some logic, some constitutional, legal, or historical basis for arguing that the right does exist. A mere statement that it exists is insufficient.

So that argument just changes to "women have the right to abortion anyways, and the 9th makes sure it can't be taken away from them".

Rights do not exist simply because you or I say they do. There must be some reason, some logic, some constitutional, legal, or historical basis for arguing that the right does exist. A mere statement that it exists is insufficient.

Quite right, because you could also say "a fetus has the right to life, and the 9th makes sure it can't be taken away from them so abortion is unconstitutional and can't be allowed". You could come up with any number of contradicting rights if you used that kind of logic with the 9th.

If I'm shown as having been active here recently it's either because I've been using the gallery, because I've been using the search engine looking up something from way back, or because I've been reading the most excellent UK by-elections thread again.

Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.

Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.

Yes, I got that. It's okay.

Logged

If I'm shown as having been active here recently it's either because I've been using the gallery, because I've been using the search engine looking up something from way back, or because I've been reading the most excellent UK by-elections thread again.

Consider an argument along the following lines: "The Constitution does not explicitly mention the right to an abortion. Therefore, you do not have the right to an abortion." The point of the Ninth Amendment was to ensure that such arguments would not be treated as valid.

Not at all. The argument would be: "The Bill of Rights does not explicitly mention the right to murder people. Therefore, you do not have the right to murder people." But since Congress has no power to prohibit murder, you do have the right to murder within the 50 states (only with regard to the federal government).

Not at all. The argument would be: "The Bill of Rights does not explicitly mention the right to murder people. Therefore, you do not have the right to murder people." But since Congress has no power to prohibit murder, you do have the right to murder within the 50 states (only with regard to the federal government).

That's in part my point. Here, you rely not only on the Ninth Amendment, but also the enumeration of powers. An argument that relies solely on the Ninth Amendment in support of a purported right is invalid.

The point to the ninth amendment is to keep the government chained to the enumerated powers. For example, there already was a right to free speech in each state prior to the first amendment, due to the enumerated powers; the first amendment simply made an explicit note of it.

All that really changed is that the Congress could no longer infringe upon free speech in the territories.

The focus of the litigation surrounding this amendment is doubtless questions of abortion, homosexual sodomy, etc. Of course, I believe that these things are so basically private, so beyond the reaches of any authority, that their legal protection is assured as fundamental.

However, we must be aware of some erroneous perceptions. Some liberals find it fitting to view this amendment as reflecting the community's evolving standards of decency.

If there is a constitutional right to privacy, then aren't 'community standards of decency' completely superfluous?